NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0030n.06
Filed: January 9, 2008
No. 05-3330
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) On Appeal from the United
) States District Court for the
v. ) Northern District of Ohio
)
HOPETON WEBBER, )
)
Defendant-Appellant. )
Before: BOGGS, Chief Judge; COLE, Circuit Judge; and HOOD, District Judge.*
HOOD, DENISE PAGE, District Judge. Defendant-Appellant Hopeton Webber appeals
the judgment below. For the reasons set forth in this opinion, we reverse the jury’s finding as to the
amount of marijuana, but otherwise affirm the remaining findings.
I. OVERVIEW
Hopeton Webber, also known as Ricky Webber, was indicted on April 14, 2004, along with
seven defendants, on twenty-five counts in the Northern District of Ohio. Webber was charged with
conspiracy to possess with the intent to distribute marijuana and cocaine, in violation of 21 U.S.C.
§ 846, and using a telephone to facilitate the commission of a drug trafficking offense, in violation
of 21 U.S.C. § 843(b). On August 4, 2005, a federal grand jury returned a superseding indictment
* The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
against Webber and the same co-defendants as in the original indictment. In addition to the same
crimes charged in the original indictment, Webber was charged with an overt act and as a leader or
organizer.
The jury trial begain on November 9, 2004. The jury returned a verdict of guilty on
November 12, 2004 on counts 1, 14, and 22. Webber was sentenced to a term of imprisonment of
151 months and five years of supervised release on February 17, 2005. The trial court denied
Webber’s motion for a new trial and judgment of acquittal on December 1, 2004. Webber timely
filed an appeal.
II. FACTS
In November 2002, the Federal Bureau of Investigation (“FBI”) began an investigation of
Shelby Jones. Authorized interceptions of conversations conducted over Jones’ cellular telephone
established that Jones was supplied marijuana by an individual identified to Jones as Johnny Ouch,
later identified as Walter Hines. Interception of conversations with Hines’ cellular phone was later
authorized.
Jones and Hines met in 1999. Hines began supplying Jones with marijuana in 2000,
receiving 50 to 60 pounds on a regular basis. Jones paid Hines $1,150 to $1,250 per pound of
marijuana. Jones came to learn that Hines’ marijuana supplier was an individual named “Ricky
Tin” or “Family.” Although Jones never had any direct dealings with Hines’ supplier, Jones claims
he was approached by Webber at a local mall. Webber asked Jones about the money owed by Jones
to Hines at that time in the amount of $58,000. After this encounter with Webber, Jones’ supply
from Hines was reduced. During the conspiracy period, Jones was supplied between 1,200 and
1,300 pounds of marijuana by Hines. Hines and Webber were childhood acquaintances.
2
Webber was born in Jamaica and immigrated to the United States in 1988. He was employed
as an auto mechanic, but also worked nationally as a DJ, a promoter of reggae performers. Webber’s
real name is Kevin March, but his nickname is “Ricky” or “Ricky Tin.” During a traffic stop in
1989, Webber showed an officer the identification of his cousin, Hopeton Webber, and the alias
became part of his record. Webber claims he does not go by the nickname “Family.” The term,
“Family,” is a generic greeting similar to “Brethren” or “Brother” used by Jamaicans when greeting
each other. He is a thirty-eight-year-old father of nine children. Webber lived in Cleveland, Ohio,
in his mother’s two-family home, with her, as well as his wife, his children, and one nephew. Until
December 2004, Nigel Chung, Webber’s brother, lived in their mother’s home also, occupying the
third floor apartment.
Chung was in the home remodeling business and became involved in distributing marijuana
for extra money. Webber supplied Chung with marijuana in 2003 and also assisted Webber with
handling the finances, keeping records of the marijuana proceeds and amounts of money paid.
Intercepted conversations confirmed that Webber directed Chung on matters relating to the collection
and payment of money.
The recorded conversations were all in Jamaican patois,1 which Webber claims is impossible
for non-Jamaican speaking listeners to understand. The FBI used an agent to listen to and transcribe
the conversations. The recordings were heard by the jury, and the transcripts were also admitted into
evidence. Webber claims the government did not ask the court to find the agent qualified as an
expert witness, but that the jury was later instructed that the agent had testified as an expert. The
1
Patois - a) a dialect other than the standard or literary dialect. b) uneducated or provincial
speech. [Merriam-Webster Online Dictionary].
3
government alleges that intercepted conversations between Webber, Hines, and Chung relating to
the distribution of marijuana were coded, requiring the expertise of a drug investigator familiar with
the investigation or case to interpret the codes used by the participants.
The government alleges that conversations between Webber and Hines established that Hines
was subservient to Webber. Webber instead claims that the investigators stumbled across him and
assumed his involvement. He was not a particular target of the investigation. In an affidavit
requesting the search of Webber’s home, the FBI described the residence as a “stash house” used by
Hines and Chung to store drugs. However, when the search warrant was executed, the FBI found
Webber’s family asleep. No drugs or weapons were found in the home.
On February 2, 2004, Special Agent Todd DeKatech of the FBI requested assistance from
the Drug Enforcement Administration (“DEA”) in Tucson, Arizona, to conduct surveillance on
Hines, who was traveling from Cleveland to Arizona. Deputy Sheriff Karen Couture of the Pima
County Sheriff’s Office, assigned to the Arizona DEA Task Force, along with other agents,
conducted surveillance on Hines. Hines was followed from the airport to a residence located at 8550
South Snyder Road, Tuscon, Arizona.
Deputy Sheriff Couture was assigned on April 16, 2004 to serve an arrest warrant issued by
the United States District Court for the Northern District of Ohio on Webber at the Snyder Road
property in Tucson. Several officers, including FBI agents, went to the property to execute the arrest
warrant. The property, a five-to-seven acre compound, contained a main residence (2,500 to 3,000
square feet), a smaller residence (1,100 to 1,200 square feet), a large workshop with a carport, and
a swimming pool. After they arrived on the property to execute the arrest warrant, the officers were
told that Webber was inside one of the houses. The officers knocked on the door and asked Webber
4
to come outside of the smaller residence. Webber was arrested as he came out of the smaller
residence at the Snyder Road property. Four other individuals were in the smaller residence. The
agents went into the smaller residence to secure the property and to perform a prospective search.
Deputy Sheriff Couture thereafter obtained a search warrant for all the buildings and vehicles at the
Snyder Road property based on what she observed from the outside of the building and what she was
told by the FBI agents after the agents performed the prospective search and exited the smaller
residence.
The search of the residences and other buildings revealed that the property was being used
to pack and store marijuana. A closet located in the den of the main residence contained seven boxes
containing bales of marijuana, packed in boxes with styrofoam and wrapped in plastic. Four fully
loaded handguns, including two semiautomatic pistols from the smaller residence, and a zip lock bag
full of marijuana were seized. In the garage were numerous boxes, marijuana seeds and residue on
the ground, plastic wrapping paper, spent rolls of plastic tape, a trash bag full of unopened tape and
duct tape. A 2000 Mercedez Benz with Florida license plates and a second vehicle with Ohio plates
were parked in the carport.
Webber alleges Jones and Chung provided false testimony against Webber in exchange for
testifying against him and for leniency. Jones testified he had received marijuana from Chung and
Hines, but never from Webber. Chung testified that Webber supplied him of marijuana, but that
Chung kept his own written records of the purchases and sales locked away in the attic of his
mother’s house. Chung also testified that Webber’s nickname is “Ricky,” but that the name
“George” on his written records of drug activity actually referred to Webber, not anyone who was
actually named George.
5
The pieces of evidence against Webber were the drugs and weapons discovered in the main
house near the location of Webber’s arrest. Webber claims that he had never set foot in the building
where officers found large quantities of marijuana packed in boxes, as well as packing materials and
scales. No fingerprints, testimony, or evidence connected Webber to these items, and Webber was
never charged with possession of these items. Webber argues that evidence of their seizure was
introduced against him without a limiting instruction. He further argues that there was no evidence
connecting Webber with whoever owned or rented the property where the contraband was found.
Webber’s fingerprints were not found on the contraband or weapons, and none of his personal
belongings were discovered at the Arizona residence. There was nothing to tie Webber to the drugs
or paraphernalia found in the main residence.
Webber raises six issues on appeal: 1) the trial court erred in allowing into evidence the 210
pounds of marijuana and other contraband found in an unknown third party’s house in Arizona; 2)
the trial court erred in allowing expert testimony by an agent regarding decoding telephone
conversations of Webber; 3) there was insufficient evidence to support a conviction for using a
telephone to facilitate a felony; 4) there was insufficient evidence that the amount of marijuana
exceeded 1,000 kilograms; 5) the prosecution committed misconduct during trial and at closing
argument by the Assistant United States Attorney (“AUSA”); and 6) Webber was denied effective
assistance of counsel. We address each issue below.
III. ANALYSIS
A. Evidentiary Rulings
1. Evidence found in Arizona
All evidentiary rulings are subject to the abuse-of-discretion standard of review. United
6
States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002) (citing United States v. Mack, 258 F.3d 548,
553 & n.1 (6th Cir. 2001)). An abuse of discretion occurs when we are left with the “definite and
firm conviction that the [district] court . . . committed a clear error of judgment in the conclusion it
reached upon a weighing of the relevant factors” or “where it improperly applies the law or uses an
erroneous legal standard.” Id. (citing Huey v. Stine, 230 F.3d 226, 228 (6th Cir. 2000) (citations and
internal quotation marks omitted)).
Webber argues that the jury heard evidence that quantities of marijuana, weighing equipment
and packing materials were discovered in a building but not the building in which Webber was found
when he was arrested by authorities. Webber asserts that this information was prejudicial and
resulted in an unfair proceeding. Webber contends that the jury also heard that four firearms were
found in the smaller residence that Webber visited, but that the weapons were hidden and were never
handled or possessed by Webber or a co-defendant. Webber argues that the court erred by permitting
the jury to hear testimony pertaining to the marijuana packing operation, the scales found at the main
residence, the numerous photos of the handguns and bales of marijuana, although no fingerprints
belonging to Webber were found in these locations. Webber also argues that there was no
suggestion that he knew the renter or owner of the marijuana house or the activities transpiring in
the main residence. Webber further argues that the trial court erred in failing to give a limiting
instruction on the evidence found at the Arizona compound. Finally, Webber argues that all of these
items were sent to the jury room in violation of Fed. R. Evid. 402.
The government argues that a review of the evidence presented at trial revealed that the
evidence was relevant and that there was a connection between the items seized at the Arizona
compound and Webber. The government claims that evidence established that Webber supplied
7
marijuana to Hines and Chung and that Chung handled large amounts of marijuana proceeds for
Webber; that Special Agent DeKatch observed Hines boarding the plane for Phoenix, Arizona; and
that surveillance agents followed Hines to the premises where Webber was arrested. The
government states that Webber was observed leaving the smaller residence. The government argues
that all of this evidence established that the compound was being used for packaging and processing
marijuana; that these facts and evidence were charged as overt acts in the conspiracy count of the
indictment against Webber; and that possession of the marijuana, packaging material, and firearms
was part of the conspiracy and thus was circumstantial evidence of actions by the co-conspirators
in furtherance of the conspiracy.
Relevant evidence is generally admissible while irrelevant evidence is inadmissible. Fed.
R. Evid. 402. Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” Fed. R. Evid. 401. Fed. R. Evid. 403 provides that relevant evidence may
be excluded if its probative value is substantially outweighed, inter alia, by the danger of unfair
prejudice or misleading the jury. This court gives the district court broad discretion to determine
whether or not to admit evidence based upon considerations of relevance and materiality. United
States v. Walton, 909 F.2d 915, 925 (6th Cir. 1990); United States v. Phillips, 575 F.2d 97, 100 (6th
Cir. 1978). See United States v. Stull, 743 F.2d 439, 445 (6th Cir. 1984) (because the district court's
determinations of relevancy depend on the exercise of considerable judgment within the context of
the entire trial, appellate courts should not lightly overrule the trial court's decision). We will reverse
a district court's decision to admit evidence based on considerations of relevance and materiality only
if the district court abused its discretion. Walton, 909 F.2d at 925; United States v. Schrock, 855
8
F.2d 327, 333 (6th Cir. 1988).
The marijuana and other contraband found in buildings where Webber was not found, and
the guns found hidden in the building where Webber was found, are relevant to the charge of
conspiracy. In a drug conspiracy conviction, the essential elements are: (1) an agreement to violate
drug laws, (2) knowledge and intent to join in the conspiracy, and (3) participation in the conspiracy.
United States v. Taylor, 248 F.3d 506, 515 (6th Cir. 2001); see United States v. Welch, 97 F.3d 142,
148-49 (6th Cir. 1996). “A conspiracy may be inferred from circumstantial evidence that can be
reasonably interpreted as participation in the common plan.” United States v. Pierce, 62 F.3d 818,
826 (6th Cir. 1995) (citing United States v. Ellzey, 874 F.2d 324, 328 (6th Cir. 1989)).
Webber argues that he was unduly prejudiced by the admission of this evidence because he
was not found in the main residence of the compound. In United States v. Rey, 923 F.2d 1217 (6th
Cir.1991), the defendant argued that the admission of items, such as a mobile phone, beeper,
answering machine, CB radio, cassette recorder, and certain books was irrelevant and prejudicial.
The court reasoned that a collection of items made the charge more probable and therefore was
relevant evidence. Rey, 923 F.2d at 1221. The same is true of the marijuana, packaging materials
in the buildings other than where Webber was found, and the guns found in the residence where
Webber was found. All of this evidence is indicative of customs and tools of the drug trade. The
existence of this evidence makes the charge of conspiracy to distribute illegal drugs more probable,
therefore, it is relevant.
With regard to prejudice, Rey stated: “[t]he trial court has broad discretion in deciding
admissibility issues under Rule 403. In order to exclude evidence under Rule 403, the evidence must
be more than damaging; it must be unfairly prejudicial. Unfair prejudice means an undue tendency
9
to suggest a decision on an improper basis.” Id. at 1222 (citations omitted). The evidence in this
case was certainly damaging to the defense but we do not think it was unfairly prejudicial. The
marijuana and contraband recovered from buildings where Webber was not found and the guns
hidden within the building where Webber was found were all within the same compound. The
testimony from the agents and officers was that although there were different buildings in the
property, the buildings were part of one compound. These relevant facts are facts from which the
jurors could draw their own inferences. We conclude that there was no undue prejudice resulting
from the admission of this evidence.
2. Expert Testimony
Webber argues that the testimony of Special Agent Kenneth Riolo as to the coded language
used by Webber and Hines in their wiretapped telephone conversations was in error because it was
not reliable, and Special Agent Riolo had insufficient expertise to translate the specific slang words
or jargon used in the conversations. Webber states that although the government did not explicitly
offer Special Agent Riolo as an expert witness during trial, he was permitted to give his opinion
about the meaning of words used by the Defendants, and that the jury was later instructed that he had
testified as an expert. Webber contends that Special Agent Riolo’s testimony resulted in an unfair
proceeding in violation of his due process rights.
The government states that it presented testimony of Special Agent Riolo pursuant to Fed.
R. Evid. 702, to explain codes and jargon used by Webber and Hines in intercepted conversations.
The government contends that under Rule 702, Special Agent Riolo was qualified as an expert on
the basis of his extensive training and experience in narcotics investigations, including a large
number of wiretap cases and several marijuana cases. Some of the cases involved Jamaican
10
nationals. The government argues that Special Agent Riolo was involved in the case as co-case
agent and his duties included reviewing the intercepted calls in order to identify the individuals
involved in the illicit activities and their involvement in drug trafficking activities, which included
being able to determine when the conversations related to drug trafficking activities. The
government states that coded language was used by Webber, Hines, and Chung during marijuana
related conversations. The government contends that the words or phrases used by Webber, Hines,
and Chung would not mean anything to a juror, unless the codes used were explained by an expert
in drug investigations with knowledge of the specific case. The government cites United States v.
Garcia, 72 F.3d 130, 1995 WL 712757 *5 (6th Cir. Dec. 4, 1995) (unpublished), for the proposition
that “experienced narcotics agents may explain the use and meaning of codes and jargon developed
by drug dealers to camouflage their activities.”
The standard of review of a district court’s evidentiary rulings, including those made under
Fed. R. Evid. 701 and 702, is abuse of discretion. United States v. White, 492 F.3d 380, 398 (6th Cir.
2007). Even if the district court erroneously admitted evidence, we reverse only if the ruling affects
a substantial right of a party. Id.
The district court did not abuse its discretion or manifestly err by allowing the testimony of
Special Agent Riolo as to the words or jargon used in the intercepted conversations. Special Agent
Riolo testified that he had been assigned to the drug squad of the FBI for 17 to 18 years. (Joint
Appendix (“J.A.”) at 644). He had received specialized training in several areas, such as major case
investigations, drug schools, drug identification, undercover group investigations, Title III (wiretap
investigations), etc., and has been involved in hundreds of narcotics investigations. (J.A. at 644-45).
Chung identified Webber’s voice on the intercepted conversations. (J.A. at 650-51). Special Agent
11
Riolo testified as to what the language and jargon meant in the intercepted phone conversations, but
as mentioned previously, Webber’s counsel stipulated to the authenticity of the transcriptions and
the accuracy of the translations. (J.A. at 338-39).
Given Special Agent Riolo’s experience in drug investigations, it was not manifestly
erroneous for him to provide expert testimony based upon the recorded phone conversations.
B. Sufficiency of Evidence
1. Intercepted Telephone Conversations
Webber argues that if he had been a conspirator in the drug trafficking business, he would
have been caught discussing drugs or money in the intercepted phone conversations. Webber claims
that the government developed a theory that Webber’s phone conversations were deliberately coded
to sound like those made by ordinary people, and that this was not a reasonable conclusion.
The government argues that the evidence in support of these charges included the actual
recordings of intercepted conversations containing Webber’s voice and the narcotics investigator’s
opinion of the coded language used in the conversations. The government contends that it was the
ultimate decision of the jury to determine what weight to give the interpretations of the intercepted
conversations, and whether or not the conversations were in furtherance of the conspiracy.
The standard of review for insufficient evidence claims is whether, after viewing the facts
in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. United States v. Sykes, 292 F.3d 495, 498-99 (6th
Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Webber did not contest the authenticity of the transcriptions or the accuracy of the
transcriptions of the recorded conversations because Webber’s strategy was to argue that the voice
12
on the recorded conversations was not Webber. (J.A. at 338-39). Viewing the facts in the light most
favorable to the prosecution, a rational trier of fact could have found the essential elements of using
a telephone to facilitate a felony beyond a reasonable doubt.
2. Amount of Marijuana
The jury determined that Webber possessed over 1,000 kilograms of marijuana. Webber
argues that the quantity of drugs found by the jury could only have been based upon the testimony
of Jones and Chung. Based on the testimony of Jones and Chung, Webber claims that the largest
amount of marijuana that could be attributed to him is 1,810 pounds and that the government is
required to prove Webber possessed about 2,200 pounds to meet the 1,000 kilograms found by the
jury.2 The government argues that if the drug proceeds are taken into account, along with poundage
testified to by Jones and Chung, the monetary amounts support the jury’s determination that Webber
possessed 1,000 kilograms of marijuana.
Again, the standard of review for insufficient evidence claims is whether, after viewing the
facts in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Sykes, 292 F.3d at 498-99.
The testimony at trial established that 210 pounds of marijuana was seized at the Arizona
residence.3 Jones testified that during the time he dealt with Hines, he purchased as much as 1,300
pounds of marijuana. (J.A. at 522). Chung testified that the initial amount of marijuana that he
received from Webber was 100 pounds. (J.A. at 560). Chung also testified that he picked up a
shipment for Webber of 50 pounds on one occasion (J.A. at 558), and gave a supplier of Webber
2
1 lb./ 2.2 = 1 kg.
3
Neither party disputes that 210 pounds of marijuana was seized at the Arizona residence.
13
$27,000.00 on another occasion. (J.A. at 559). Chung testified that he counted money from Hines
on two occasions at $29,000.00 and $42,000.00 respectively. (J.A. at 561). Chung testified to a
ledger that he maintained which indicated a total of $153,500.00 in marijuana proceeds representing
money Webber told Chung to keep and money from Hines. (J.A. at 564-65). Chung testified that
when he purchased marijuana from Webber, he paid approximately about $1,100.00 to $1,200.00
per pound. (J.A. at 555). Finally, in 2003, Chung testified that he purchased 150 pounds from
Webber. (J.A. at 570).
Adding the pounds of marijuana established at trial, the total is 1,810 pounds (210 + 1,300
+ 100 + 50 + 150) or 822.73 kilograms of marijuana. The total dollar amount, without the ledger
amount, equals $98,000.00 ($27,000.00 + $29,000.00 + $42,000.00). (J.A. at 559, 561). Adding
the ledger amount referenced by Chung’s testimony of $153,500.00, the total dollar amount gleaned
from the trial is $251,500.00.
The government’s brief, at page 32, argues that account should also be taken of an additional
amount of “a balance of $175,000 carried forward . . . .” However, that amount does not appear
anywhere in the cited material, nor any other place that we could ascertain from the record. The brief
also claims that “conversations intercepted . . . mentioned amounts of drug proceeds, possessed or
to be collected for a total of $281,000.” However, the government does not indicate how that figure
is derived, and our own inspection of the material cited for this amount can substantiate, being
extremely charitable, no more than $82,000.00. See J.A. 580.
The largest dollar amount that any rational juror could arrive at is the $251,500.00 from the
previous paragraph, plus $82,000.00. Even if we take the lowest value of marijuana, $1,150.00 per
pound, we arrive at an equivalent of 290 pounds of marijuana which, added to the 1,810 pounds of
14
physical marijuana discussed above, amounts to 2,100 pounds, still falling short of the necessary
2,200 pounds required to support of finding a 1,000 kilograms. Viewing the evidence in the light
most favorable to the government, there was insufficient evidence for the jury to find that Webber
was involved in a conspiracy to possess with the intent to distribute more than 1,000 kilograms of
marijuana.
C. Prosecutorial Misconduct
Webber argues that the government was aware that Webber had nothing to do with the drugs,
paraphernalia, weapons, or the Mercedes-Benz found in Arizona, but allowed this testimony during
trial and did not attempt to correct the allegedly false statements. Webber contends that the
government’s argument that Webber was discovered in the presence of 210 pounds of marijuana was
a misleading argument. Webber also argues that evidence pertaining to the weapons seized at the
house in Arizona, where Webber was arrested, misled the jury.
Webber objects to numerous comments made by the government during closing argument.
Specifically, Webber alleges that Plaintiff-Appellant repeatedly referred to his decision not to testify,
commented about Webber’s relationship with his children, and addressed issues of the moral ills of
our society, creating unfair prejudice. Webber argues that the comments made by the government
were cumulative and require a new trial.
The government argues that a review of the evidence presented at trial proves that Webber
was the supplier of marijuana in the drug conspiracy and was connected to the Arizona property
where he was arrested. The government contends that based upon circumstantial evidence, a
reasonable inference could be drawn that Webber was a participant in the marijuana packaging
activities at the Arizona property. In regards to the firearms, the government states that firearms
15
have been recognized to be tools of the drug trade and cites United States v. Ware, 161 F.3d 414, 417
(6th Cir. 1998) and Jennings v. Rees, 800 F.2d 72, 75 (6th Cir. 1986). The government states that
the Mercedez-Benz was found on the Arizona property with ties to Webber. The government
contends that its arguments were based upon reasonable inferences made from the evidence
presented.
The government states that there was no objection to the comments about Webber’s
relationship with his children, and therefore this claim of prosecutorial misconduct is reviewed only
for plain error, citing United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994). The government
notes that Webber’s children were present during the trial and were mentioned by defense counsel.
The government asserts that the comments were made to emphasize to the jury that they should
decide the case without sympathy or emotions, and referred to facts elicited by Webber’s counsel that
Webber traveled extensively and was never home.
In terms of Webber’s assertion that the government referred to his decision not to testify, the
government states that Webber’s voice was identified in court by Chung and Special Agent Riolo.
Webber’s counsel argued in closing arguments that the identification of Webber’s voice in the
recordings played in court was in dispute because Chung was lying, and Special Agent Riolo had
never spoken to Webber. The government, as counter argument, stated that the voice identification
was not in dispute, and that the AUSA’s comment concerning the identity of the speaker was not a
reference to Webber not testifying, but was referring to the lack of contradiction to the voice
identification. The government points out that the court gave a jury instruction emphasizing that the
burden of proof on the issue of voice identification was on the government and that Webber was not
obligated to present any witnesses.
16
In regards to the AUSA’s soliloquy pertaining to the moral ills of society, the government
argues that the comments were timely objected to and sustained. The government also points out
that the court gave an instruction that the soliloquy was inappropriate and gave an instruction to
disregard it to the jury.
Whether statements amount to prosecutorial misconduct and whether they rendered the trial
fundamentally unfair are mixed questions of law and fact and are therefore reviewed de novo.
United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999) (citing United States v. Clark, 982 F.2d
965, 968 (6th Cir. 1993)). When reviewing claims of prosecutorial misconduct, we determine first
whether the statements were improper. Id. (citing United States v. Krebs, 788 F.2d 1166, 1177 (6th
Cir. 1986)). If they appear improper, we then look to see if they were flagrant and warrant reversal.
Id. To determine flagrancy, we determine: 1) whether the statements tended to mislead the jury or
prejudice the defendant; 2) whether the statements were isolated or among a series of improper
statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the
total strength of the evidence against the accused. Id. at 549-50 (citing United States v. Monus, 128
F.3d 376, 394 (6th Cir. 1997)). To reverse a conviction because of an improper non-flagrant
statement, we must determine that: 1) the proof of the defendant’s guilt is not overwhelming; 2) the
defense counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish
the jury. Id. Improper comments made by the prosecutor without objection from the defense are
reviewed for plain error. United States v. Sloan, 833 F.2d 595, 598 (6th Cir. 1987). “The plain error
doctrine mandates reversal only in exceptional circumstances and only where the error is so plain
that the trial judge and prosecutor were derelict in countenancing it.” Id. (quotation and internal
marks omitted).
17
We have previously found that there was sufficient evidence to find that Webber was
involved in a drug conspiracy. The drugs, paraphernalia, weapons, and the Mercedes-Benz found
in Arizona could be inferred as part of the drug conspiracy. Webber has offered no evidence to
demonstrate that the government was aware that Webber had nothing to do with these items. To the
contrary, the government presented circumstantial evidence which the jury found linked Webber to
the drug conspiracy. In addition, Webber was arrested in a property located in Arizona where the
drugs, paraphernalia, weapons, and the Mercedes-Benz were located. The statements of the
government in this regard were not improper.
Webber’s claims that the AUSA commented unfairly about Webber’s decision not to testify
are not substantiated by the record. Webber’s assertion that the government made improper
comments on his decision not to testify is based upon comments made during closing argument
stating that “I didn’t hear anybody disputing the identity of his [Webber’s] voice.” (J.A. at 797-98).
This statement, taken in the context of the government’s closing argument, made no reference to
Webber’s failure to testify. The comment appears to have a relation to Webber’s trial strategy which,
as mentioned previously, was to deny that he was the voice which was heard in the intercepted phone
conversations. Webber’s brother testified that it was Webber’s voice in the recordings played in
court. Although the comment was not objected to by Webber’s counsel, the district court gave a
curative instruction to the jury. (J.A. at 810-11). This comment does not warrant a reversal of
Webber’s conviction.
The AUSA’s comments pertaining to Webber’s relationship with his children were also not
improper. Although Webber argues that the comments were improper because Webber alleges that
it suggested that Webber deserved a conviction for his personal failings, not whether or not the
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elements of the offense were proven, this is not substantiated by the record.4 There was sufficient
evidence presented which would allow the jury to return a conviction in this matter. The comments
were not improper and not significant enough to rise to the level required to find prosecutorial
misconduct. There was sufficient evidence to otherwise allow the jury to reach a verdict.
Finally, the AUSA’s comment about the moral ills of our society was improper and objected
to by Webber’s counsel. (J.A. at 807). A curative instruction was given by the district court. (J.A.
at 810). This comment does not warrant a reversal of Webber’s conviction.
D. Ineffective Assistance of Counsel
Webber asserts that although it is true that the appellate court generally defers challenges
based upon ineffective assistance of counsel to § 2255 proceedings, this case is unusual and there
is enough evidence presented in Webber’s letters to the court and the government sufficient for this
court to review the claim on appeal.
The government contends that Webber’s ineffective assistance of counsel claim may not be
raised for the first time on direct appeal unless the record is sufficiently developed to address the
4
In his closing argument, Plaintiff-Appellee stated:
... He [Defendant-Appellant] is the one who got him [Chung] into
this. He is the real culprit in this conspiracy. He is the supplier.
Would you do that to your brother? Would you involve your brother?
Would you keep him out? Would you bring your kids into Court if
you are charged with a crime? Would you bring your kids in to get
sympathy from the jury?
I asked you initially: Can you put the sympathy aside? All of us are
human, of course. What kind of father is he? He is never home. He
is traveling. Where to? We don’t know. At least, we know - - we
know that he was in Florida gambling some tine ...
(J.A. at 798-99)
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claim and cites United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997) for this proposition. The
government argues that Webber’s ineffective assistance of counsel claims can be more fully
developed on collateral review under § 2255.
Traditionally, ineffective assistance of counsel claims are not cognizable on direct appeal.
Pierce, 62 F.3d at 833; Aguwa, 123 F.3d at 423. The proper avenue for raising such claims is
through collateral attack on the conviction pursuant to 28 U.S.C. § 2255. Pierce, 62 F.3d at 833.
(citing United States v. Goodlet, 3 F.3d 976, 980 (6th Cir. 1993)). This rule stems from the fact that
a finding of prejudice is a prerequisite to a claim for ineffective assistance of counsel, and appellate
courts are not equipped to resolve factual issues. Aguwa, 123 F.3d at 423 (citations omitted). If the
parties have adequately developed the record, however, the court can elect to hear the issue on direct
appeal. Pierce, 62 F.3d at 833 (citing United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)).
We find Webber’s ineffective assistance of counsel claim is more appropriate for collateral
review.
IV. CONCLUSION
For the reasons set forth above, we reverse the jury’s finding that Webber possessed 1,000
kilograms of marijuana, but otherwise affirm the remaining findings. We remand for further
proceedings consistent with this opinion.
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